The Constitutional Court endorses the decree laws when it sees an urgent need for the measures adopted.

The endorsement or annulment of the Constitutional Court of the decree laws depends fundamentally on the court appreciating the urgent need to adopt the measures contemplated in them. There is currently a great debate open in the guarantee body on this issue, because the appreciation of these two circumstances—whether a certain decision is necessary and also urgent—can involve more or less subjective judgments. In general terms, the court has tended to avoid assuming the role that corresponds to the Government itself in assessing both requirements. That is, the sentences tend not to directly assess whether the aforementioned two circumstances have occurred in each of the cases analyzed, but rather the analysis refers to an adequate justification of the reasons that the Government had to appreciate the urgency and need. . If the argument was solid in these aspects, the decree law in question has a good chance of being endorsed, and if it was not, it is very likely that it will be annulled.

In the case of the decree bus approved by Congress and for which the leader of the PP, Alberto Núñez Feijóo, has announced an appeal to the Constitutional Court, sources from the court itself estimate that, if it is finally challenged, it would be subjected to a detailed analysis of each specific measure. In this regard, the multiplicity of decisions it contemplates is cited, including, for example, measures of efficiency and digital digitization, along with others related to public functions or patronage. And all this in the context of the commitments with the European Union (EU) to receive the fourth disbursement of aid, worth 10 billion euros. Without prejudging what the prognosis of an eventual appeal against this decree law would be. bus, The sources consulted considered the thesis of the urgent need linked to the amount of the aforementioned European funds and their use for policies of high public interest to be very defensible. The same sources considered the same criterion applicable to the measures adopted in response to the consequences of the wars in Ukraine and Gaza, due to their economic repercussions and the extension of those same effects to broad social sectors equally affected by inflation, for example.

During the time of Mariano Rajoy (PP) in the Government, important decree laws were adopted that contributed to opening this debate on the origin of the endorsement or the annulment of the measures to which they provided coverage. A clear example of this was the decree that deprived immigrants who did not have their stay in Spain legalized of access to public healthcare. The conservative majority at that stage in the Constitutional Court endorsed this demand, which motivated the opposition and the individual vote against the progressive minority.

Already with the Government of Pedro Sánchez (PSOE) the opposite happened when, for example, various decree laws were examined that the Executive tried to justify in the context of the health alarm. Then the annulment of some decrees – for example, the one that annulled the appointment of Pablo Iglesias to the management body of the National Intelligence Center (CNI) – was advocated by the conservative sector of the court, while the progressive sector denied that the court tied up the President of the Government to form his teams and the leadership of organizations that could be key in emergency situations, health or other types. Another similar debate divided the Constitutional Court when the inclusion of the mutuality of civil servants in one or another Ministry was discussed, an issue in which the progressive minority defended the full autonomy of the Government, in this case without the need to justify an urgent need.

A decree law for which an annulling ruling was first prepared and then endorsed, given the differences in criteria between conservatives and progressives, was the one relating to the right to equality that extended paternity leave to equate it with maternity leave. The appeal began to be debated when there was still a conservative majority in the court, and the speaker, Alfredo Montoya, from this sector, proposed annulling the rule. But the matter was pending for a while when Montoya fell ill and after a year he had to leave the court to better continue his treatment. The change of speaker left the case in the hands of the current president of the Constitutional Court, Cándido Conde-Pumpido, of the progressive group, when this sector was already the majority in the court, which endorsed the decree law.

In this case, as in others from the most recent stage of the Constitutional Law, the endorsement of the decree law was based on the urgent need for the measure adopted, especially—and this nuance is important—in the context of the effects and social consequences of the pandemic, especially in the most economically disadvantaged sectors. The current progressive majority of the Constitutional Court has been defending, in this sense, that the urgent need for the measures and their justification by the Government must be analyzed taking into account the economic and social context of each moment.

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